Can the media be jailed for criticizing a President?

President Donald Trump wants Congress to investigate news outlets he doesn’t like for what he’s called “fake news” reporting. So if Congress wanted to, could it pass a law that would jail journalists for reporting stories critical of the President or Congress itself?

On Thursday, Trump posted the following message on his Twitter account: “Why Isn't the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just made up-FAKE!”

It’s unknown how the legal system would interpret such a law in light of modern interpretations of the First Amendment if it were passed by Congress and signed by the President. But there are indications in two Supreme Court decisions from the 1960s that such laws wouldn’t be evaluated favorably by the Court, which has the final say on the matter.

Congress has passed two Sedition Acts in the past. In the 1790s, President John Adams and the Federalists passed Alien and Sedition Acts when it seemed likely that the United States would go to war against its former ally, France. The actual act had a long name, “An Act in Addition to the Act, Entitled ‘An Act for the Punishment of Certain Crimes Against the United States.’” But it was targeted at Adams’s opponents and sought to jail anyone who would “shall write, print, utter or publish” statements critical of President Adams, Congress or the federal government. Such offenders would face libel charges.

The 1798 Sedition Act’s two biggest opponents were Thomas Jefferson and James Madison, who anonymously wrote documents called the Kentucky and Virginia Resolutions declaring that act of Congress as unconstitutional.

The final version of the Kentucky Resolution said that the federal government’s Alien and Sedition Acts violated the states' guarantee of rights under the Constitution’s 10th Amendment. It called the acts “nothing short of despotism” and “that the said alien and sedition laws, are in … palpable violations of the said constitution.”

Madison’s Virginia Resolution was equally critical. The Sedition Act, Madison said, “exercises in like manner, a power not delegated by the Constitution … which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

The state legislature of Massachusetts wasn’t happy with the Virginia statement. “The genuine liberty of speech and the press, is the liberty to utter and publish the truth; but the constitutional right of the citizen to utter and publish the truth, is not to be confounded with the licentiousness in speaking and writing, that is only employed in propagating falsehood and slander,” it argued in 1799. The lawmakers also said that the Constitution clearly provided for the Sedition Act and Congress couldn’t do its duty “without the power to restrain or punish seditious practices and unlawful combinations against itself, and to protect the officers thereof from abusive misrepresentations.”

In all, more than two dozen people were convicted under the 1798 Sedition Act. The controversial publisher James Callender and a member of Congress, Matthew Lyon, served jail time for criticizing the Adams administration. The act expired when Adams left office in 1801 and it was considered one of the primary reasons for Jefferson’s victory over Adams in the 1800 presidential election.

More than 100 years later, President Woodrow Wilson pressed in 1918 for a second Sedition Act during World War I as an amendment to the Espionage Act. The amended language made it a crime to "utter, print, write, or publish any disloyal, profane...or abusive language" about the United States government or to disagree with its actions overseas. Nearly 900 people were convicted under the act and related laws in 1919 and 1920 before the Harding administration had it repealed.

That Sedition Act was twice tested in the Supreme Court. In Abrams v. United States, a majority of the Court upheld the act, but Justice Oliver Wendell Holmes dissented, with Justice Louis Brandeis agreeing with Holmes. “I had conceived that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed,” Holmes wrote. The second case involved the efforts of Socialist leader Eugene Debs to impede the wartime draft.

In 1964, the Court considered another landmark case, New York Times v. Sullivan, that also involved libel and defamation of a government figure, but not in a wartime environment.

Justice William Brennan in his majority opinion said that government officials couldn’t sue for damages when criticized by the press unless a standard of “actual malice” was met. “A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’ - that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false,” said Brennan wrote

As part of that opinion, Brennan offered a sharp critique of the Sedition Act of 1798. After quoting Jefferson, Madison, Brandeis and Judge Learned Hand, Brennan cites a 1942 opinion from federal judge Henry White Edgerton in a libel case filed by a Congressman.

"Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors,” Edgerton said. “Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man's mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken from the field of free debate.”

Justice Brennan concluded that, “although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”

In a later Supreme Court decision, Justice William Douglas came to the same conclusion. In Watts v. United States, Douglas concurred with an opinion that told a story about John Adams.

“While our Alien and Sedition Laws were in force, John Adams, President of the United States, en route from Philadelphia, Pennsylvania, to Quincy, Massachusetts, stopped in Newark, New Jersey, where he was greeted by a crowd and by a committee that saluted him by firing a cannon,” Douglas said. “A bystander said 'There goes the President and they are firing at his ass.' Luther Baldwin was indicted for replying that he did not care 'if they fired through his ass.' He was convicted in the federal court for speaking 'sedicious words tending to defame the President and Government of the United States' and fined, assessed court costs and expenses, and committed to jail until the fine and fees were paid.”

“The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever,” Douglas concluded in a case where the Court decided, without even hearing arguments, that a man who made a hyperbolic threat against President Lyndon Johnson didn’t violate a federal law.

Scott Bomboy is the editor in chief of the National Constitution Center.

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